Matthew John Armindariz v. The State of Texas Appeal from 358th District Court of Ector County (memorandum opinion per curiam)
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Opinion filed July 8, 2021 In The Eleventh Court of Appeals __________ No. 11-19-00021-CR __________ MATTHEW JOHN ARMINDARIZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 358th District Court Ector County, Texas Trial Court Cause No. D-45,887 MEMORANDUM OPINION ON REMAND The jury convicted Appellant, Matthew John Armindariz, of the offense of murder and assessed his punishment at confinement for life. We modify the trial court’s judgment to delete the Time Payment Fee assessed as a court cost and, as modified, affirm the trial court’s judgment. Appellant’s court-appointed counsel has filed in this court a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and concludes that there are no arguable issues to present on appeal. Counsel provided Appellant with a copy of the brief, a copy of the motion to withdraw, and a copy of both the clerk’s record and the reporter’s record. Counsel advised Appellant of his right to review the record and file a response to counsel’s brief. Counsel also advised Appellant of his right to file a petition for discretionary review. See TEX. R. APP. P. 68. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Appellant subsequently filed a response to counsel’s Anders brief. We have reviewed Appellant’s response. In addressing an Anders brief and a pro se response, a court of appeals may only determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Schulman, 252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we agree with counsel that no arguable grounds for appeal exist. 1 We note, however, that the judgment contains a nonreversible error. In the judgment, the trial court ordered Appellant to pay court costs, including a Time Payment Fee of $25. In light of the recent opinion of the Court of Criminal Appeals in Dulin, we conclude that the time payment fee must be struck in its entirety as prematurely assessed. See Dulin v. State, 620 S.W.3d 129, 133 & n.29 (Tex. Crim. We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R. APP. P. 68. 1 2 App. 2021). When the trial court erroneously includes fees as court costs, we should modify the trial court’s judgment to remove the improperly assessed fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Accordingly, we modify the trial court’s judgment and the bill of cost to delete the time payment fee of $25, without prejudice to a time payment fee being assessed later “if, more than 30 days after the issuance of the appellate mandate, [Appellant] has failed to completely pay any fine, court costs, or restitution that he owes.” See Dulin, 620 S.W.3d at 133. We grant counsel’s motion to withdraw; modify the judgment of the trial court as set forth above; and, as modified, affirm the judgment of the trial court. PER CURIAM July 8, 2021 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Williams, J., and Wright, S.C.J.2 Trotter, J., not participating. Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. 2 3
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